On Tuesday, Alex Kozinski, Chief Judge of the federal Ninth Circuit was caught by the LA Times with a website full of sexually explicit material accessible to the public. Pardon the pun, but perhaps the old expression about "closing the barn door after the animals are gone" has never been more appropriate. The LA Times says the site included photos of "naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal." There is so much wrong with this picture that it's hard to decide where to start.

Next week, I'll be giving a talk at the Arizona State Bar Convention about legal ethics and technology. One of the most important points is that lawyers need to understand how big a data footprint they and their clients are leaving behind.

Kozinski is reported to have said that he thought the site was for his private storage and that he was not aware the images could be seen by the public. That's a problem for many lawyers, who are unaware how easy it is to find things they or their clients have posted on the web. In the Judge's case, that's doubtful if he's really the author of the letter to 'Article III Groupie" posted on undertheirrobes.com. There, in a plea to be included as a contender for "judicial hottie" were multiple links to http://alex.kozinski.com. The links included the reportedly offensive subdirectory /stuff (see the properties for "bungee jump"). If he didn't think people could get to the subdirectory, why did he include a link to it?

Kozinski is reported to have said he didn't know if any of the material on the site is obscene. The site is now offline and apparently unavailable through some of the easiest means of access. But, Cryptome has posted a list of all of the files and subdirectories in the judge's /stuff subdirectory and it contains a subdirectory called "/fucking" which has been around since November 2006. The LA Times described part of the Kozinski site as containing "images of masturbation, public sex and contortionist sex." In researching this story, I accidentally came across the women-as-cows photo (be very careful which Google hits you choose if you search this story); the women's posteriors are facing the camera and their genitalia are in full view.

In the first LA Times story, the Judge said that he had uploaded sexually explicit content to the site. The next day, the Judge is reported to have suggested that some of the items were posted by his adult son and that he was unaware of them. If this becomes a question of sufficient concern, there are technical methods to determine whether this is likely true or false. The website appears to have been registered by the Judge's son, hosted on a joke server and registered using an obviously false address (including both homage to hackers with references to FOO and to lawyers with the fictitious town "Barsville"). Even so, with pc logs, server logs, emails, and web postings, it won't be that hard to figure out most of who did what.

The story broke because Judge Kozinski was hearing a trial level case, a criminal prosecution for for the distribuion of pornographic materials (containing bestiality). In response to the news stories about his own website, Judge Kozinski suspended trial at least until Monday. Besides the immediate question of possible conflict of interest, it is likely that someone will look more closely at how the case came to be assigned to Judge Kozinski. It is not impermissible for an appeals court judge to hear a trial case, but it is not common.

The LA Times reports that the Judge "defended some of the adult content as "funny"" and "he had shared some material on the site with friends." Considering that the site contains the aforementioned photos of naked women as cows, and is reported to have included at least one photo of women exposing their pubic hair, we will now wait to see whether former female employees or colleagues come forward to say that they were the recipients of such "sharing" and found it offensive or harassing. And, it's only a matter of time before someone takes a new look at his writing on sexual harassment (Foreword in Sexual Harassment in Employment Law (Barbara Lindemann & David D. Kadue, BNA 1992), reprinted as Locking Women Workers in a Gilded Cage in Legal Times of Washington, May 25, 1992, at 26.)

Also discovered on Judge Kozinski's website were "more than a dozen" copyrighted songs and it has been asserted that they were readily copy-able by the public. While that's a pretty small number relative to the civil copyright infringement actions typically reported, it could still be a copyright violation if others did copy the files. Perhaps more interesting, someone may want to reread the Judge's participation in the July 28, 2000 decision to stay an injunction against Napster.

All in all, it looks like it's going to be a tough week for Judge Kozinski, until now considered one of America's brightest and most influential conservative judges.

COMMENTS

Lessig has a stirring defense of the good judge here:http://lessig.org/blog/2008/06/the_kozinski_mess.htmlOf course we want our judges to outdo Augustine himself when it comes to leading virtuous lives, but that's a little unrealistic. Augustine himself had a pretty shady past, and if he was never allowed to move past it, the world would be a poorer place.If Lessig is right about the facts, and that's a lot of iffing, there's something to be said for the idea that "the locks on the door were so weak I thought I was free to enter" isn't a great defense when you violate someone's privacy.

Metaphorical - Thanks for the Lessig reference. I think we're in agreement. If there were "locks on the door" and people were breaking in, it would be invasion of privacy. If the "judicial hottie" letter is real however, this is much more of an "I opened my door and invited folks in" situation.

posted on Monday, June 16, 2008 at 9:09 AM
by
K Krasnow Waterman

And now there's this very interesting missive; the URL describes the content. Long and worth reading.http://patterico.com/2008/06/16/alex-kozinskis-wife-speaks-out/